Ombudsman warned over “chilling effect” on lawyers of publishing complaints records

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By Legal Futures

1 December 2010

Sampson: result of consultation may have to be the "least bad" solution

Lawyers have warned the Legal Ombudsman (LeO) that some clients will end up unrepresented if he adopts a complaints process that involves “naming and shaming”.

Fear of reputational damage would have a chilling effect on taking on clients perceived to be “risky” and adversely impact on lawyers whose social conscience led them to offer help, they said.

The ombudsman, Adam Sampson, responded that whether to use statutory powers to identify the lawyer or firm is a “very tricky” issue and that a lack of consensus means any future system is likely to be the “least bad” solution in the circumstances.

Speaking at a meeting in London, one of a series of national events set up after the LeO published a consultation on publishing its decisions in late September, Mr Sampson insisted that he was genuinely open-minded as to the outcome. But he admitted he was doubtful that any conclusion would be reached that would satisfy the pro- and anti-naming camps. “It is about getting the best solution we can,” he said.

He said the LeO was committed to putting statistical data into the public domain to show trends; for instance where certain client groups are badly served by providers. But the issue of whether to name the lawyers would involve “balancing different interests” and involve “a bit of a punt” in terms of the consequences. He added that he had to be mindful of the world after alternative business structures come in next year, an event that will change consumer behaviour.

In January the LeO will conduct focus groups with members of the public on whether to name and shame.

Towards the end of its tenure, the LeO’s predecessor, the Legal Complaints Service, was planning to start publishing its findings, but came up against strong opposition from solicitors. LCS research in 2008 found consumers in favour of openness but apparently did not indicate they thought it would help them choose a solicitor – a key advantages cited by those who advocate publishing full details.

The meeting’s chair, Dr Dianne Hayter, chairwoman of the Legal Services Consumer Panel, agreed that a balance had to be struck over naming and that the complaints regime “has to have the confidence of legal services providers as well as consumers”. Dr Hayter made her panel’s views known at the end of September when she said it “strongly supports the identification of lawyers subject to ombudsman investigations”.

The case for solicitors was put by Russell Wallman, the Law Society’s head of government relations. He said the consequences of naming could be the “unfair tarnishing of reputations” and difficulties some clients would have in accessing any representation at all, from solicitors wary of being the subject of a complaint.

Some firms might cease to cover social areas of law altogether if they perceived the risk of complaints might threaten their commercial law work, Mr Wallman added. He argued that an alternative would be to adopt “carrot, not stick” solutions, such as a quality mark for firms with excellent complaints records.

Reinforcing Mr Wallman’s concerns, a partner with responsibility for complaints in a national law firm warned that one group who would suffer disproportionately under a naming and shaming policy was solicitors whose “social conscience” drove them to take on difficult clients. “For those people effectively to be punished for that would be extremely unfair,” she said.

In its September consultation, the LeO conceded that areas of law such as immigration, mental health, family and criminal law, through their “emotional and contentious nature, are likely to generate more complaints than other areas”.

There were calls at the meeting from representatives of both consumers and journalists for the LeO to start from a premise of openness and transparency. But they stopped short of advocating a blanket policy of naming for every complaint. A spokesman for one consumer organisation argued that the LeO should publish full information on complaints in a controlled way as a counterpoint to websites such as solicitorsfromhell, which, he warned, would release information in an uncontrolled way.

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